Court orders review of innocence claim

San Francisco

Published 4:00 am, Saturday, June 27, 2009

Kevin Phelps, serving a life sentence for a 1993 murder in Richmond, has been trying for more than a decade to get a federal judge to hear his claim of innocence, and may soon get his chance.

On Thursday, a federal appeals court overturned a series of rulings that had found Phelps' lawyer filed a 1998 appeal 15 days too late, and ordered a judge to consider his case.

"Far too often in recent years, concern for efficiency and procedure has overshadowed concern for basic fairness," said the Ninth U.S. Circuit Court of Appeals in San Francisco. The court said Phelps, often acting as his own lawyer from prison, deserves a hearing.

His current attorney, A.J. Kutchins, said Phelps' case illustrates the degradation of a system that was designed to allow review of state convictions by independent federal judges, but has been increasingly hemmed in by restrictive laws and conservative courts.

"It's ... become a big game where poor and often unrepresented criminal defendants have to negotiate an ever more complicated and incomprehensible maze of rules and obstacles," Hutchins said.

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Deputy Attorney General Juliet Haley, the state's lawyer, said the court had misinterpreted California rulings that showed Phelps' appeal was filed too late and should have been dismissed. She said she may appeal further and maintained that state courts have already rejected all of Phelps' claims of innocence.

Phelps was convicted of the February 1993 murder of Mark Crosby, a crime that Haley described as a gang-related, drive-by shooting. Juries at his first two trials deadlocked, but he was convicted at a third trial in 1994 and was sentenced to 35 years to life.

After appealing unsuccessfully in state courts, Phelps' lawyer filed a federal appeal in May 1998, a year and 15 days after the California Supreme Court refused to review his case. The appeal said new eyewitnesses had come forward who could exonerate Phelps and that he had received inadequate legal representation.

The filing, however, has been tied up in arguments over whether it missed the deadline set by a 1996 federal law.

That law required federal appeals to be filed within a year of the last state court order in the case. After U.S. District Judge Maxine Chesney ruled that Phelps was too late, the Ninth Circuit interpreted California law to include a 30-day grace period.

Chesney, however, said another federal law barred Phelps from refiling his appeal. Further procedural wrangling consumed years, until the appeals court called a halt Thursday.

"At each stage in Phelps' legal struggle over the past 11 years ... he has put forward sound legal arguments," which were rejected in his case and later accepted in other cases, Judge Stephen Reinhardt said in a 3-0 ruling returning the case to Chesney.

"Entirely as a result of misfortune, Phelps sits today in prison without a single federal judge ever having evaluated the substance" of his claims, Reinhardt said. He said the case "represents the epitome of our obsession with form over substance."